this post was submitted on 21 Aug 2023
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This is really important. The particular case tried a very difficult argument, that works created by machine have copyright regardless of human input, which no serious copyright experts thought would work because it's been pretty comprehensively litigated that human creativity is required
They also tried to argue the much more plausible theory that the prompt had creativity, and that the copyright flows down from the prompt to the AI-generated work, but the type of suit they brought didn't permit that argument. That theory still needs to be litigated, and while I would be a bit surprised to see it work, it's entirely possible it will. So I'm not ready to say all AI-generated work is PD just yet.
Of course, regardless of if what comes out of the AI is PD, you can make enough modifications to a PD work and create something you can copyright. Many people are doing enough "touch-ups" to AI art that the final product is potentially copyrightable. Amusingly, the better the generator, the less the human has to do here, and the weaker the protection becomes.
I am not sure that "touch-ups" are considered creative enough alterations to be able to copyright the resultant work. Minor touch-ups do not seem to be at least.
What is interesting is this copyright claim is far more damning for AI work than the case that all these articles going around are making. Though I don't know if this has been tested in court yet.
it basically claims that since AI generated images are hard to predict there is not a strong enough chain between the prompt and the result that shows you have enough of an influence over the generated image. And that generating lots of images until one matches what you envisioned is also not good enough, like how searching the internet for an image that matches what you envisioned does not give you copyright over it.
It also shows that minor alterations are not enough to claim copyright on the image.
Interesting, isn't this a direct consequence of knowing the general procedure a generative AI follows but not the individual steps it takes or works it leverages? If there was proper sourcing at every step you could actually have control and finesse on the output. But because the specific actions aren't documented, you're unable to move the algorithm in a specific enough direction to claim ownership.